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THE JOURNAL OF THE NSW BAR ASSOCIATION | AUTUMN 2018
AUTUMN 2018
|
THE JOURNAL OF THE NSW BAR ASSOCIATION
First Nations and the NSW Bar
PLUS
Implied terms of fact: counsel’s last resort
Robert Stephen Toner (1951-2018)
CONTENTS
THE JOURNAL OF THE NSW BAR ASSOCIATION | AUTUMN 2018
2 EDITOR’S NOTE
4 PRESIDENT’S COLUMN
6 NEWS
ABA-High Court Dinner & High Court silks bows ceremony
John Shaw - 50 years at the NSW Bar
EDITORIAL COMMITTEE 9 LETTERS TO THE EDITOR
Ingmar Taylor SC (chair) 10 OPINION
Anthony Cheshire SC Intersectionality at the NSW Bar
Dominic Villa
Mr Dutton and the ‘lily-livered judges’
Christopher Withers
Nicolas Kirby 14 RECENT DEVELOPMENTS
Daniel Klineberg
Catherine Gleeson 26 ADDRESSES
Victoria Brigden Advocacy and unthinkable challenges
Caroline Dobraszczyk
Talitha Fishburn The people are not instruments
Juliet Curtin The Ninian Stephen Lecture
Radhika Withana
David Robertson 36 FEATURES
Kevin Tang First Nations and the NSW Bar
Alexander Edwards
Memories of the Liberation of Walgett
Charles Gregory
Bar Association staff member: The Uluru Statement
Chris Winslow Sol Bellear: Memories of the Redfern Speech
Native title compensation claims
ISSN 0817-0002
Views expressed by contributors
56 PRACTICE
to Bar News are not necessarily A different seat in the courtroom
those of the New South Wales Practising at the London Bar
Bar Association.
Genderfluidity and the law
Contributions are welcome and
Paperless trials
should be addressed to the editor:
Ingmar Taylor SC Implied terms of fact: counsel’s last resort
Greenway Chambers
76 LEGAL HISTORY
L10 99 Elizabeth Street
Sydney 2000 The Doctor’s Commons
DX 165 Sydney
79 PROFILES
Contributions may be subject to
editing prior to publication, at the 84 WHO IS A BARRISTER?
discretion of the editor. Anne Gibbons
Cover: The Hon Justice Rares of the 85 OBITUARIES
Federal Court at a ceremonial Jose Crespo
welcome before the determination of
His Honour Judge Robert Toner SC
the Yindjibarndi People claim.
Photo: By Tina Jowett 88 APPOINTMENTS
The Hon Justice Thomas Thawley
Her Honour Judge Julia Baird SC
Magistrates Peter Thompson, Stuart Devine, Daniel Covington
Jonathan Hyde
Bar News is published under a 90 BOOK REVIEWS
Creative Commons ‘free advertising’
95 BAR SPORTS
license. You are free to share, copy
and redistribute the material in any The Great Bar Boat Race
medium or format. You must give Golf Day
appropriate credit, provide a link to
the license and indicate if changes 96 BULLFRY
were made. You may do so in any Bullfry and ‘Son of the Jackal’
reasonable manner, but not in any
way that suggests the licensor 97 ARCHON’S VIEW
endorses you or your use. You may
not use the material for commercial 98 ADVOCATUS
purposes. If you remix, transform or 99 THE FURIES
build upon the material, you may not
distribute the modified material. 100 POETRY
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 1
EDITOR’S NOTE
What the Bar was, is and can be
Australia is indeed the lucky country, for most. have on her [or him]. Known types of coun-
Yet the tyranny of the majority has cast its sel are identified, such as the LOD (light on
stains here too. detail) counsel, who ‘work on the assumption
One such stain is the treatment of our Indig- that facts are like truffles, an expensive delicacy
enous peoples. Massacred, dispossessed of their not to be consumed in substantial qualities;
land, deprived of citizenship, and treated with also that judges were truffle pigs. And, just in
disdain or worse for decades, the descendants the case of the poor truffle pig, the judge never
of our First Nations unsurprisingly remain got the good end of the deal.’
largely disadvantaged. For those who have been meaning to take
This edition of Bar News focuses on the up gentle exercise to help address the stresses
rights of First Nations people and the law. of the Bar, there is a review of Supreme Court
In August 2001 the Bar Association estab- Justice Ruth Bader Ginsberg’s exercise regime.
lished the Indigenous Barristers’ Trust – The Vance Hughston SC and Tina Jowett This edition also contains a typically en-
Mum Shirl Fund. Established and carried on provide an analysis of the developing law in tertaining piece by David Ash, packed full of
in large part by the sheer force and determi- respect of native title compensation claims, amusing asides, on the development of the law
nation of Chris Ronalds, with the support of where Courts are being asked to put a mon- on implied terms in a contract. It reveals the
Ruth McColl, Bret Walker, Mullenjaiwakka etary figure on the loss of the connection Ab- rich history that underlies the usual one para-
and Michael Slattery, amongst others, it has original peoples have with ‘country’ following graph excerpt from BP Refinery (Westernport),
facilitated the pursuit of the practice of law by the extinguishment of their native title rights. the last Privy Council decision to be recorded
Indigenous persons. A different stain caused by the tyranny of in the Commonwealth Law Reports.
This edition carries profiles of four such First the majority is examined in a powerful speech There a number of other great pieces. David
Nations lawyers: Teela Reid, previously tipstaff by a leader of our Bar, Bret Walker. His speech Robertson has written a fascinating account
to Justice Lucy McCallum, and barristers Tony focusses on our nation’s decision to indefinite- of the first paperless trials being conducted by
McAvoy, Leon Apostle and Damian Beaufils. ly detain refugees overseas. By reference to the Land and Environment Court. Michelle
Teela speaks of the assistance provided by the German case law and the writings of Imma- Painter provides an insight into the tragedy
Bar Association and the trust: ‘It’s not just the nuel Kant, he expounds on the fundamental and emotions that arise when ‘the whispering
financial assistance – it’s the connections made proposition that it is impermissible to use the division’ hears matters in its Family Provision
amongst law students, graduates and people in lives of others as a means to an end. List. Christopher Parkin of the NSW Bar,
the profession such as judges, barristers and so- Bar News continues to examine the current and Duncan McCombe, chair of the Young
licitors that are breaking down barriers. Young State of the Bar and its increasingly diverse Bar of England and Wales in 2017, tell us
Aboriginal lawyers are now starting to believe membership. To that end there is a new what it is like to practise at the London Bar.
that going to the Bar is possible…’. column, ‘Who is a barrister?’, under which title Alexander Rose writes about how the law is
Michael Kirby has written a piece that ex- each edition will profile a barrister who is not slowly catching up with genderfluidity. Steven
amines the everyday discrimination faced by one of the usual suspects. Berveling provides an insight of what it is like
Aboriginals in the in the 60s. And Sol Bellear, The caricature of a barrister is a white, mid- to be a plaintiff in a personal injury matter.
who recently died shortly before the 25 year dle-aged man practising out of wood-paneled Kevin Tang provides another of his entertain-
anniversary of Paul Keating’s Redfern Speech, chambers adjoining the Supreme Court (yes, ing excursions into the history of the Bar, this
speaks of its impact in a moving interview con- Bullfry, I am talking about you). They still time the history of the ‘Doctor’s Commons’
ducted by the NSW Aboriginal Land Council. make up a sizeable proportion of the Bar, but who practiced ecclesiastical law. And Poulos’
Looking forward, Professor Megan Davis, they are aging (about a third of the Bar are obituary of that titan of the Bar, Robert Toner
Professor Rosalind Dixon, Associate Pro- men over 60yrs of age) and the make-up of the SC, is absolutely wonderful.
fessor Gabrielle Appleby and Noel Pearson Bar is gradually changing. Did you know that Bar News, as the journal of the NSW Bar, is
discuss how the First Nation’s people should more than 10% of the Bar are women over 50 a record what the Bar was, what it is, and what
be recognised by our Constitution, and why yrs? The first ‘Who is a barrister?’ column pro- it can be. If you can contribute to that record,
there should also be a mechanism created to files one of them – Anne Gibbons, who came please do so.
acknowledge the wrongs of the past. As they to the Bar at the age of 52 yrs. In particular, if you have a strong view about
explain, the Uluru Statement from the Heart Wellbeing at the Bar continues to be a an aspect of practice or the mores of the Bar
provides the path to an important, indeed significant issue. Our President has written a then send me a piece that can be published
necessary, step to true recognition and recon- powerful column on judicial bullying and the anonymously as Advocatus.
ciliation. It is a shame that the human failings effect it has on practitioners. Or if you merely have questions, then send me
of our national cricketers gave rise to more A view from the other side of the bar table is one, and let the Furies provide the answer.
commentary and column inches than the fail- provided by our first Archon’s View column.
ure of our leading politicians to embrace the An anonymous Superior Court judge writes Ingmar Taylor
Uluru Statement. about the effect that certain types of counsel Greenway Chambers
2 [2018] (Autumn) Bar News The Journal of the NSW Bar Association
PRESIDENT’S COLUMN
Judicial bullying
by Arthur Moses SC
A workplace too important to fail but our raison d’etre is advocacy and the
courtroom is our workplace. The verbal
Many of you will recall in March-April 2017 interaction between the bench and bar table
the Bar Association surveyed 2329 practising is what determines one’s success or failure in
certificate holders. By the standards of such the profession. Which makes it surprising
things, it was a great success. We received that there does not appear to be a definition of
947 valid responses: equivalent to 41 per cent judicial bullying. However, like US Supreme
of all New South Wales PC holders. Court Justice Potter Stewart in Jacobellis
v Ohio, members of the Bar Association
appear to ‘know it when they see it’. The
QoWL survey contained an open question:
‘What form did this judicial bullying take?’
While the courts are adopting relations between the two. The courtroom, Respondents identified as examples:
new technologies and becoming it could be said, is a workplace that is too
important to fail. • Belittling, patronising or
more efficient, the fair and Against this backdrop, it is concerning to humiliating comments in front
report on instances where relations between of colleagues and a jury
quick administration of justice bench and bar have begun to fray. Of those
who responded to the survey, 66 per cent said • Repeated intimidation
depends more than ever upon the they had experienced judicial bullying. The and interruptions
Fair Work Ombudsman provides a definition
professionalism and diligence of of bullying in the workplace, according to • Angry outbursts and yelling
which, a worker is bullied at work if:
both bench and bar and courteous
• Unreasonable deadlines
relations between the two. • a person or group of people
repeatedly act unreasonably towards • Gender slurs: ‘Being asked in an
them or a group of workers open court who will take care
of my baby during the trial’.
The survey incorporated three sets of • the behaviour creates a risk
questions designed to measure the wellbeing to health and safety.
of barristers and the quality of their working
life. It yielded a rich data set, which is being Unreasonable behaviour includes victim-
analysed to identify problems experienced ising, humiliating, intimidating or threat- I would suggest that some of the
by members, particularly those affecting the ening. Whether a behaviour is unreasonable correlates of judicial bullying and poor
retention of junior barristers and to provide a can depend on whether a reasonable person
methodology for new or better services and might see the behaviour as unreasonable in quality of working life result from the
benefits. the circumstances. Examples of bullying
I have spoken candidly, both in Bar News include: pressure that our courts are under.
and in the mainstream media, about the
urgent need for state and federal governments • behaving aggressively
to properly fund the courts and legal aid. For
decades now, access to justice has been given • teasing or practical jokes Judicial bullying was reported by barristers
only lip service by various ministers and at all levels of seniority – including those
members of parliament. The strains upon • pressuring someone to with less than five years standing through to,
the criminal justice and family law systems behave inappropriately and including, those with more than 20. The
are manifest in clogged lists, underpaid survey also indicates that the prevalence of
and over-worked junior counsel, a growing • excluding someone from judicial bullying appears to be higher in the
reliance on pro-bono schemes and the work-related events or District and Supreme Courts than the Federal
prevalence of self-represented litigants. While Court. Barristers whose areas of practice are
the courts are adopting new technologies and • unreasonable work demands. professional negligence and personal injury
becoming more efficient, the fair and quick reported comparatively greater difference in
administration of justice depends more than Chambers work, in the form of drafting wellbeing scores between those who have
ever upon the professionalism and diligence submissions and holding conferences, experienced judicial bullying and those who
of both bench and bar and courteous occupies a great amount of barristers’ time, have not.
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 3
PRESIDENT’S COLUMN
We can say with a high degree of con- consultation. The Bar Association has the Chief Justice Allsop of the Federal Court,
fidence that, among those holding a New capacity and experience to do this and there tells our readers during their Bar Practice
South Wales Barrister’s practising certificate, are a number of precedents. Course, that he does not tolerate judicial
a ‘Yes’ response to the question on judicial bullying by members of his court and if it
bullying correlates with a cluster of factors, Members of the Bar Association
which together predict a low quality of working who are concerned with a delay in a
life. Other factors that relate to a barrister’s reserved judgment, can contact the
working conditions include, but are by no Bar Association’s executive director in
In most instances, trials take
means limited to: writing requesting that discrete inquiries
be made of the court or tribunal. place in an open courtroom,
• Working more than 60 hours per week;
BarCare and the Benevolent Fund are in some cases before a jury.
• Working more than 20 two more. A fundamental concern
unpaid hours per week; for barristers, their clerks and other Proceedings are recorded and
colleagues is that a request for
• Lack of sleep assistance should not put them at risk transcribed.
of a professional conduct investigation
• A perception that other barristers by the Bar Association. That is why Clients, counsel, solicitors
are more productive BarCare, in particular, is operated at and court staff are present.
arms length from the Bar Association, in
• A feeling that their job is not secure order to reinforce trust in its impartiality Many trials are reported in the
and confidentiality.
• Perfectionism mainstream media.
Ethical Guidance Scheme: members of
Perhaps statisticians and social scientists the New South Wales Bar Association If judicial bullying occurs, it
will disagree, but I would suggest that some can seek urgent ethical guidance from
of the correlates of judicial bullying and a senior counsel currently serving on is taking place ‘in plain sight’
poor quality of working life result from the the association’s Professional Conduct
pressure that our courts are under. The Bar Committees. In urgent cases the contact
also needs to be mindful of the fact that judges may be by phone. Bar Council could
are under enormous pressure and like the rest form a dedicated committee to manage is experienced by any of the readers, then he
of us, have human frailties which sometimes reports of judicial bullying through would like to know about it. The comments
manifest in inappropriate behaviour in the practices and procedures that mirror the of Chief Justice Allsop provide reassurance to
courtroom. As president, I will continue to Professional Conduct Committees. our colleagues at the outset of their career,
vigorously advocate to the premier and the that judicial bullying is not the norm and
attorney general for increased funding for In most instances, trials take place in an should not to be tolerated by the profession.
legal aid and for adequate judicial resourcing. open courtroom, in some cases before a jury.
Furthermore, the Bar Association will target Proceedings are recorded and transcribed. Training and CPD
all of the factors correlating with lower scores Clients, counsel, solicitors and court staff
for wellbeing. are present. Many trials are reported in Reporting and verification of judicial bullying
That said, the Bar Association has received the mainstream media. If judicial bullying can have only a limited effect. Regardless of
an unequivocal message from its members: occurs, it is taking place ‘in plain sight’. how the problem is characterised, judicial
judicial bullying is perceived to be a work- Secondly, consideration is given to bullying is, by its nature, a conflict that can
place hazard for barristers and you expect us consultation with the heads of jurisdiction: be escalated or de-escalated, depending on
to respond on your behalf. a ‘quiet word’ with the chief judge or the the behaviour of the judge and counsel.
chief justice occurs from time to time. The Many companies train their staff in ‘how
Appropriate responses Bar Association in the past has lodged a to deal with difficult people’. A curriculum
complaint with the Judicial Commission and training modules could be included in
First, I have asked the Wellbeing Committee to of NSW in relation to judicial bullying. the Australian Bar Association’s Advanced
investigate appropriate responses to instances However, I can say that without breaching Trial Advocacy Intensives and the Bar
of judicial bullying. Without prejudicing the any confidences that when I have raised issues Association’s Continuing Professional
outcome of their deliberations, there are a with Chief Justice Bathurst, he has engaged Development program and Bar Practice
number of options being looked at. The first in a constructive manner in relation to the Course, which would instruct counsel in
is a ‘Hotline’ or other means of confidential issue of judicial conduct in the courtroom. techniques for increasing their resilience and
4 [2018] (Autumn) Bar News The Journal of the NSW Bar Association
EDITOR’S NOTE
responding appropriately to judicial bullying. behaviour at the hands of a judge. Ask the courtroom is their workplace. For that
for an adjournment to break the cycle of reason, I, as president, together with the Bar
Professional courtesy confrontation. Offer encouragement or Council, will treat judicial bullying with the
constructive advice to the counsel at the bar utmost gravity.
While there are appropriate responses open table, or if the barristers subjected to bullying
to the Bar Association, the most opportune wishes to raise the matter appropriately with
time for an intervention is before the court the Bar Association, then consider lending
adjourns. Professional courtesy and a sense your support.
of collegiality require counsel – particularly This is a matter of extreme sensitivity, but
senior counsel – not to look the other way great concern to members of this association.
if a colleague at the bar table is subjected to There is no other body better placed to
unreasonable, inappropriate or objectionable represent the interests of those for whom
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The Journal of the NSW Bar Association [2018] (Autumn) Bar News 5
NEWS
ABA - High Court Dinner
& High Court silks bows ceremony
The newly appointed silks from
every state and territory took
their bows before the High
Court in Canberra on Monday,
5 February 2018. That evening,
the Australian Bar Association
held its annual dinner in the
Great Hall of the High Court
The Hon Justice Michelle Gordon Noel Hutley SC
The silks take their bows before the High Court Lisa Nichols SC
NSW silks, L to R: Lesley Whalan SC, Melissa Gillies SC, Francis Hicks SC, Presidents of the state and territory bar associations, L to R: Ian Robertson SC,
Michael Wright SC, Michael Elliott SC, Ruth Higgins SC, Greg Waugh SC, Christopher Hughes QC, Noel Hutley SC, Matt Collins QC, Ken Archer, Arthur
Naomi Sharpe SC, Kate Morgan SC Moses SC, Miles Crawley SC, Matthew Howard SC, Chris Gunson SC
6 [2018] (Autumn) Bar News The Journal of the NSW Bar Association
NEWS
ACC Australia National Conference 2017
A report from the Practice Development Committee
by Liz Cheeseman SC, Chair, and Michele Kearns, Clerk Representative
The 2017 ACC Australia Benchmarks and
Leading Practices Report identified employ-
ment and workplace relations as one of the top
three areas of work that in-house legal depart-
ments are most likely to outsource. Ingmar
Taylor SC, Kellie Edwards, Michele Kearns
and Justin Moses, Head of Knowledge & De-
velopment, Legal, Westpac lead an engaging
masterclass looking at direct and early briefing
of the Bar in a workplace relations context.
One of the hits of the exhibition space,
was the Barista Bar run by our indefatigable
clerks, Michele Kearns, Angela Noakes and
Emma Hoolahan. The clerks were kept busy
throughout the conference, engaging directly
with delegates, explaining the organisation of
the NSW Bar and promoting the services of
NSW barristers to the in-house community.
ACC Award for Excellence in Corporate Social Responsibility sponsored by the NSW BAR Association presented
by Liz Cheeseman SC to Ailsa Bailey, Senior Legal Counsel, NAB
The Practice Development Committee is a various events during the conference by Liz
committee of the NSW Bar Association. The Cheeseman SC, Ingmar Taylor SC, Kellie
committee comprises silks, juniors and clerks Edwards, Michele Kearns, Angela Noakes and
from a variety of practice areas. The commit- Emma Hoolahan.
tee’s charter includes as one of its objects, the The Bar Association sponsored the Austral-
promotion of the work of barristers to solici- ian Excellence in Corporate Responsibility
tors, in-house counsel and clients. Award which was awarded to National Aus-
tralia Bank. The NAB team’s work included:
NSW Bar sponsorship of ACC
Australia National Conference • support for the Refugee Advice and Case-
work Service’s Refugees Clinic, which
One of the ways in which the committee has provided about 125 free legal appoint-
sought to promote the work of barristers to in- ments a week ahead of the 1 October 2017
house counsel, both corporate and government, visa application deadline; Future events
is by forming a close working relationship with
the Association of Corporate Counsel Austral- • providing legal and commercial expertise The committee will continue to work in close
ia (ACC Australia), formerly known as ACLA. to develop the first public offshore green partnership with the NSW Barristers Clerks
ACC Australia is the premier organisation rep- bond from an Australian bank (the pro- Association and has a number of joint projects
resenting the interests of lawyers working for ceeds of which will be used to refinance in the pipeline.
corporations and government in Australia. The renewable energy and low carbon trans- In response to feedback received from the
NSW Bar Association is a National Corporate port projects) and a world first social bond ACC National Conference delegates the
Alliance Partner of ACC Australia and has in to specifically promote workplace gender committee is planning a roadshow which will
recent years been a major sponsor of the ACC equality; and visit various in-house legal teams to provide
National Conference. information on how in-house counsel can best
In the last edition of Bar News, we reported • helped develop and maintain documenta- engage the NSW Bar.
that the Bar Association was sponsoring the tion for NAB’s Microfinance partnership In addition, a series of presentations directed
ACC National Conference in Alice Springs in with Good Shepherd Microfinance, to the practicalities of finding and briefing a
November 2017. We are pleased to report that which provides fair and affordable fi- barrister is in development for each of the
the conference was a great success. nancial products to more than 26,000 NSW Law Society’s Young Lawyers commit-
The Bar Association was represented at vulnerable Australians each year. tees.
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 7
NEWS
John Dorset Shaw: 50 years at the NSW Bar
John Shaw (left) and his fiancee Violetta, along with colleagues and friends celebrating at Courtneys in Parramatta.
On 9 February 2018 Lachlan Macquarie Phil Powell QC. night to celebrate with him. John has de-
chambers celebrated 50 years to the day that Rob O’Neill shared his recollections after veloped those relationships by developing a
John was admitted to the NSW Bar. he met John in August 1975 on the formation professional work ethic.
A dinner was held for John at Courtney’s of Wardell Chambers. As John had come from John in reply shared some recollections of
restaurant at Parramatta which was well at- ‘Phillip Street’ he secured one of the prime his early days at the bar particularly an in-
tended by his colleagues and a number of his corner rooms in Wardell chambers. In 1986 stance where he was briefed to appear before
close friends and associates. John moved to the “wild West” of Parramatta his former master in the Supreme Court and
The president of the Bar Association Arthur and was one of the founding members of La- His Honour’s succinct advice to John’s client
Moses SC was unable to be in attendance chlan Macquarie chambers. to ‘bring a toothbrush with him’ when the
due to his professional commitments but he Over the years John has had an extensive matter of contempt return to the court. John
sent a note on behalf of the Bar Association practice in equity, family law, wills, probate also shared his memories of briefs he held as a
congratulating John on 50 years of practice. and appelate work. John has also developed junior to Clive Evatt QC and his ‘interesting’
Arthur canvassed, from the Bar Association’s a close professional relationship with his way of conducting a hearing.
records, some of John’s early history at the instructing solicitors some of whom have
bar. After John was admitted he practised briefed him for very many years. Some of Rob O’Neill
from Selborne chambers and his master was those were able to be in attendance on the Lachlan Macquarie Chambers
8 [2018] (Autumn) Bar News The Journal of the NSW Bar Association
LETTERS
Dear Editor mere fact that there is evidence on paper to establish the should reflect the values that sustain human societies.’
essential elements of a crime does not show its probative My concern is not so much for the law or for the judges
Yesterday I was alarmed by a report that the NSW Gov- value. The weight of evidence is an important factor to be who administer it but for the practitioner who represents
ernment is considering or intending to abolish commit- considered the client in negotiating its many paths and pitfalls.
tal proceedings in criminal prosecutions. Indictments In the inevitable event of a much larger number of It will be soon be the case if it is not already that a ma-
found without committal proceedings are not new: failed prosecutions at trial, the community at large would terial number of commercial solicitors and barristers will
they are called ex officio indictments. Although not new become more adversely critical of the criminal prosecution never have a natural person as a client, let alone the in-
they are exceptional, and are used only in very special system than they are now, to the detriment of public creasing number of practitioners who will never practise
circumstances. respect for the law. other than as in-house counsel.
I make these comments as a barrister and retired judge I strongly suspect that the financial support provided In the context of Sir Maurice’s observation, how is the
who has conducted numerous criminal matters both at to the court system, which has manifestly declined over law utilised as and applied as an expression of the whole
committal and trial stages. I was a Crown prosecutor for recent decades, is the result of our governments’ opinions personality which reflects the values that sustain human
some years. That role included almost weekly appearances that money spent on the court system is not electorally societies, in a dispute where one or more of the parties has
for the Crown in the Court of Criminal Appeal in the efficacious.
only a legal personality and, to pick up the jargon of trust
years immediately before my appointment to the bench. Only after a preliminary consideration of the available
law, perhaps no more than a bare personality?
Because of the seriousness of the matter, I am moved to evidence in a committal proceeding, with access to the
The situation is the more complicated when one con-
warn the government to think carefully before changing evidence if required, should an experienced office (a legal
siders the increase in matters across jurisdictions. A lawyer
the system of the prosecution of criminal cases. practitioner) in the prosecution service be required to
The abolition of committal proceedings without sub- decide, not just that there is some evidence to support a may represent a group of companies registered in a group
stituting an appropriate equivalent would almost certainly conviction for a crime, but that the weight of the evidence of jurisdictions. That lawyer owes a duty to the court, but
result in many cases going to trial with little or no chance is likely to support a guilty finding by a jury. one asks ‘which court?’
of resulting in convictions. There would be resultant high My concern is hardly a novel one. As a letter from a
costs of mounting trials including the expense of empanel- The Hon J A Nader RFC QC highly experienced general counsel to the editor of the
ling many more juries. Worendai, NSW ALJ published in December last year indicates, practition-
The abolition of committal proceedings is very likely to ers in the corporate world are well aware of the practical
result in a high prosecution failure rate because of the ina- and ethical issues. But it is something that requires close
bility of whoever has the task of finding bills of indictment Dear Editor attention sooner rather than later. Or we may wake up to
to assess the evidential strength of many cases when that find the civil divisions of our superior courts divided into
assessment depends upon paperwork alone without hear- I enjoyed reading Justice Allsop’s 2017 Sir Maurice the Natural Persons List and the Legal Personalities List.
ing and seeing witnesses whose credit may be doubtful. Byers Lecture, set out in the last issue of Bar News. The
One of the primary functions of preliminary hearings is address builds on an 1987 observation by that advocate, Regards,
the evaluation of the strength of the prosecution case. The ‘The law is an expression of the whole personality and David Ash
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 9OPINION
Intersectionality:
The future of diversity at the NSW Bar
by Lee-May Saw
It is remarkable how appropriately the title of a gender. Actually if I am object of some
seminal text on intersectional diversity, All the form of discrimination, it is very difficult
Women Are White, All the Blacks Are Men, But for me to separate what happens to me
Some of Us Are Brave,1 captures what it is like to because of my gender and what happens
be a woman of colour at the NSW Bar. to me because of my race and culture. My
In a section titled ‘New v Old’ in their book world is not experienced in a linear and
New Women, New Men, New Economy: How compartmentalized way. I experience the
Creativity, Openness, Diversity and Equity are world simultaneously as Mohawk and
Driving Prosperity , Narelle Hopper & Rodin as woman. It seems as though I cannot
Genoff capture current forces transforming repeat this message too many times. To
Old to New in contemporary business and artificially separate my gender from my
society.2 race and culture forces me to deny the
These forces symbolise a context in which each other. It is this approach which ultimately way I experience the world. Such denial
New Law is a rapidly growing feature of the led to the inception of intersectional theory by has devastating effects on Aboriginal
legal services market. A context in which the key African American feminists who have crit- constructions of reality.3
complete complexity of diversity is becoming icised traditional one-dimensional approaches
better and better accommodated and under- to diversity for rendering individuals who In the leadership sphere it is increasingly
stood. experience multiple aspects of diversity simul- being acknowledged that intersectionally
The NSW Bar Association Diversity and taneously ‘invisible’. diverse leaders are ambitious, capable, resilient,
Equality Committee formed a new Cultural The sentiments behind the introduction of innovative and well positioned to contribute
Diversity Subcommittee in Oc- to both the success of their
tober 2017. The Subcommittee organisation and their own
is committed to furthering cul- individual success in the 21st
tural diversity at the NSW Bar. Century.4 The Diversity Coun-
A key area of focus for the Sub- cil of Australia have found that
committee in the coming year companies in the top quartile
will be intersectional diversity. of racial/ethnic diversity in
leadership teams are 35% more
likely to have financial returns
What is intersectionality? above their national industry
median,5 and that companies
Intersectionality refers to the in the top quartile of gender
way in which different aspects diversity in their leadership
of diversity, such as gender, cul- teams are 15% more likely to
tural identity, sexuality, age and have financial returns above
disability, are interconnected their industry median.6
and cannot be separated from In a legal services environ-
one another. The theory of in- ment which is global and
tersectionality was first named crosses international borders,
in the 1980s in the work of the business case in favour of
Kimberlé Williams Crenshaw. the Bar, as leaders of litigation
The concept of intersectionality and dispute resolution teams,
itself in fact existed for decades before this, intersectionality are captured in the words of embracing the benefits of intersectional diver-
originally deriving from the work, history and Mohawk lawyer and activist Patricia Mon- sity, has never been stronger.
experiences of African American feminists ture-Angus who said:
and developing through the work, history and
experiences of other women of colour. Some Aboriginal women have turned to Lessons that can be learned from the
the feminist or women’s movement to global context – USA v Australia
seek solace (and solution) in the common
Why does intersectionality oppression of women. I have a problem When the history of women’s rights is consid-
matter for the NSW Bar? with perceiving this as a full solution. I ered, there is well-founded support for looking
am not just woman. I am a Mohawk internationally in a search to identify how and
The traditional approach to issues of diversity woman. It is not solely my gender through where to begin when it comes to harnessing
in Australia and New South Wales has been which I first experience the world, it is my the benefits of intersectionality. Given that
to address aspects of diversity independently of culture (and/or race) that precedes my Australia continues to be a country in which
10 [2018] (Autumn) Bar News The Journal of the NSW Bar AssociationOPINION
the number of appointments of lawyers of an aries when it comes to supporting individuals gender-blindness, or reverse discrimina-
Asian background to the bench above the level from culturally diverse backgrounds is the tion. Courts have frequently found that
of Magistrate remains minimal if any, is there capitalisation of foreign language skills of considerations of identity – and commit-
anything we might learn from our learned culturally diverse professionals. It is necessary ments to diversity – are permissible so long
friends in places like the United States of for significant debate and discussion to take as they do not one-dimensionally and
America or the United Kingdom? place about the pros and cons of focusing on categorically equate a single, overbroad
It is possibly less surprising to an Australian the foreign language skills of culturally diverse definition of identity (e.g., non-white)
than an American that similarities between the barristers. The traditional role of barristers is with a particular outcome.
USA and Australia are often more superficial distinguishable from that of solicitors who
than precise. Historically the USA had an ex- are a first point of call for client management Diversity proponents must research and
clusion policy which was the equivalent of the and client relationships. Barristers and leading prepare clear statements on how their di-
White Australia Policy. Cultural groups in the counsel appearing before New South Wales versity initiatives consider race, ethnicity,
USA and their history and composition differ courts are engaged to and expected to do so in color, sex, gender, sexuality, age, ability,
to those in Australia with Australia lacking the English, not a foreign language. accent and economic status among other
influential Hispanic and African American Not all culturally diverse barristers have factors in holistic, multi-dimensional
communities that populate the USA. foreign language skills. But all barristers who ways that differ fundamentally from the
The USA legal system lacks the distinction identify as culturally diverse will have to var- forms of affirmative action (e.g., quotas
between solicitors and barristers that persists in ying extents cultural competence skills and and set-asides) which courts have prohib-
the Australian legal system, and is somewhat cultural knowledge which could be utilised ited.viii
notable like all things American for its larger in informing advice, litigation and dispute
scale and more prolific resourcing. The impact resolution. Given that the growing number of As the evidence base for intersectionality
of these factors being that there are larger culturally diverse barristers at the NSW Bar extends its reach, the role of intersectionality
professional structures for ambitious culturally continue to be concentrated among the junior in channelling and transforming Old to New
diverse lawyers to scale in any attempt to rise ranks, is it fair and equitable to expect and place at the NSW Bar will become more and more
to the top. pressure on culturally diverse junior counsel to apparent. It is in the interests of members of
A consideration of similarities and differenc- have skills not only as lawyers and advocates, the Bar as leaders of litigation teams, legal
es does little to explain how it was that in 1959 but also as interpreters and translators? To practitioners, and business operators, to have
when USA exclusion policy was still very much what extent would this entrench culturally an understanding of this.
at its forte, the first Chinese American judge diverse barristers among the junior ranks of
to be appointed in the USA, Delbert E Wong the Bar rather than supporting a progression
END NOTES:
who became a Judge of the Superior Court of talented culturally diverse barristers into
of the Municipal Court of the Los Angeles leadership roles? Would this simply perpetuate 1 Crenshaw K, ‘Demarginalising the Intersection of Race and Sex: A Black
Judicial District, came to be appointed. Or at the Bar the equivalent of the phenomenon of Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and
how it is that numbers of women Asian judges culturally diverse professionals as valued junior Antiracist Politics, University of Chicago Legal Forum, vol 1989, iss 1,
including Jacqueline Hong-Ngoc Nguyen ap- employees instead of leaders at a partnership or article 8, at 139.
2 Hooper N, Genoff R & Pettifer S 2015, New Women, New Men, New
pointed as a Judge of the United States Court executive level?
Economy: How Creativity, Openness, Diversity and Equity are Driving
of Appeals for the Ninth Circuit by Barrack
Prosperity, The Federation Press, Sydney, at 4.
Obama on 14 May 2012, have come to be The future of the NSW Bar and where
3 Monture-Angus P 1995, Thunder in My Soul: A Mohawk Woman Speaks,
appointed. intersectionality will take the NSW Bar Fernwood, Halifax, Nova Scotia, at 177-178.
However, in an age where Australian diver- 4 Diversity Council of Australia 2017, Cracking the Glass-Cultural Ceiling:
sity and inclusion advocates have been touting The NSW Bar, like other branches of the legal Future Proofing Your Business in the 21st Century, Diversity Council of
the ‘tipping point’ at which diversity and inclu- profession is undergoing an inevitable trans- Australia Limited, at 8; Rodgers-Healey D 2017, ‘What is different
sion currently stands in Australia, with more formation under the influence of digital dis- about minority women’s leadership?’
is perhaps a key point in time for the NSW on the legal profession, the complete effects 5 Diversity Council of Australia 2017, above, at 6.
Bar to play its role in furthering and develop- of intersectionality on the NSW Bar will only 6 Diversity Council of Australia 2017, above.
ing the present unique opportunities in New be fully appreciated in retrospect rather than 7 NSW Law Society 2017, Practising Solicitor Statistics
inclusion. In 2010, the American Bar Association Pres-
8 American Bar Association Presidential Initiative Commission on
idential Initiative Commission on Diversity
Diversity April 2010, Diversity in the Legal Profession: The Next Steps,
Will focusing on foreign language stated that: American Bar Association, at 48.
skills be enough to ensure cultural
diversity at the NSW Bar? Properly designed approaches to diversity
and inclusion do not run afoul of contem-
A common thread across international bound- porary jurisprudence on colorblindness,
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 11OPINION
Minister Dutton
and the ‘lily-livered judges’
by Anthony Cheshire SC
I have previously written about criticisms confidence of the people in the court’s
of the judiciary: by President Trump in the judgments because the matter published
United States (Bar News, Autumn 2017); and aims at lowering the authority of the
by Federal ministers in Victoria (Bar News, court as a whole or that of its Judges and
Summer 2017). excites misgivings as to the integrity,
In January 2018, Federal Home Affairs propriety and impartiality brought to
Minister Peter Dutton returned to this theme the exercise of the judicial office.
in the context of an attack on the Victorian
government for its failure to control ‘African Mr Dutton’s comments were strongly
gang violence’, which he contended had left criticised by, amongst others, the Judicial
Victorians ‘scared to go out to restaurants’. Conference of Australia, the Australian Bar
Mr Dutton suggested that Victorians were Association, the Law Council of Australia
‘bemused’ when they looked ‘at the jokes VSCA 165), Warren CJ held that there was ‘a and the Law Institute of Victoria.
of sentences being handed down’ due to strong prima facie case’ of contempt of court. Mr Dutton, however, had a solution:
‘political correctness that’s taken hold’ and Her Honour commented:
complained that there was ‘no deterrence I think there should be greater scrutiny
there at the moment’. When Justice Lex On the one hand, if we don’t allow around some of the appointments being
Lasry issued a light-hearted tweet that there the appeal then we will be accused of made to the Magistrates’ Courts.
were citizens in Mansfield who were dining engaging in an ideological experiment
without being worried, Mr Dutton described of being hard-left activist judges. On the The solution, in part, is to make sure that
him as ‘a left-wing ideologue’. other hand, if we increase the sentences, the appointments that you’re making to
In a succession of media interviews around the respondents would be concerned the Magistrates’ Court are people who
Australia, Mr Dutton outlined the problems that we were responding to the concerns will impose sentences and will provide
as he perceived them: raised by three senior Commonwealth some deterrence to people repeatedly
ministers. coming before the courts.
Where we’ve got lily-livered judges and
magistrates going weak at the knees, it Although those comments were made Frankly, the state governments should
doesn’t reflect community standards. in the context of a specific appeal, they be putting out publicly the names of
would seem equally applicable to comments people that they’re believing they should
There is a problem with some of the to similar effect directed generally at appoint to the Magistrates Court and
judges and magistrates [Premier] Daniel magistrates in Victoria making decisions on let there be public reflection on that,
Andrews has appointed and some of the bail or sentence. because there are big consequences and
bail decisions that have been made, been As Warren CJ made clear: we’ve seen that on the Gold Coast with
criticised even by Daniel Andrews’ own the one-punch incident that you speak
ministers. …the legal notions of contempt of about.
court do not exist to protect judges or
…some of the decisions you see I think their personal reputations. These laws The suggestion of public involvement in
are pathetically weak ... If you’ve got exist to protect the independence of the process was a clear move towards judicial
people let out on bail from serious the judiciary in making decisions that election. This was not a new solution. In
offences ... it’s no wonder police are left bind governments and citizens alike. 2010, then Federal Opposition Leader Tony
scratching their heads. These laws further exist to protect public Abbott said:
confidence in the judiciary.
So if you’re appointing civil libertarians I never want lightly to change our
to the Magistrates’ Court over a long Comments attacking a judge or the existing systems but I’ve got to say
period of time then you will get soft judiciary generally can constitute an offence if we don’t get a better sense of the
sentences. of scandalising the court, which was punishment fitting the crime, this is
described by Rich J in R v Dunbabin; Ex almost inevitable.
When three Federal ministers made parte Williams [1935] 53 CLR 434 at 442 as
comments about ‘hard-left activist judges’ including: If judges don’t treat this kind of thing
who were ‘divorced from reality’ in the appropriately, sooner or later we’ll do
context of an appeal on sentence before …interferences…from publications something that we’ve never done in this
the Victorian Court of Appeal in which which tend to detract from the authority country: we will elect judges and we will
judgment had been reserved (see Director and influence of judicial determinations, elect judges that will better reflect our
of Public Prosecutions (Cth) v Besim [2017] publications calculated to impair the sense of anger at this kind of thing.
12 [2018] (Autumn) Bar News The Journal of the NSW Bar AssociationOPINION
Photo: Department of Immigration and Border Protection / https://creativecommons.org/licenses/by/3.0/au/deed.en
It is, however, a solution not the process to bring about more
without problems of its own. transparency and accountability.
Studies in the United States
suggest that sentences are harsher Professor Williams had
in election years and in particular previously noted improvements
when there are a large number of in the appointment process for
campaign advertisements being judges in terms of advertising
run. Contributors to judicial for expressions of interest,
political campaigns may expect advisory panels for shortlists,
preferential treatment and interview processes and explicit
lawyers are not immune from appointment criteria; and he
being approached for donations. recommended the setting up
The prospect of judges copying of a judicial appointments
the example of one banjo-playing commission similar to that
successful candidate’s song is adopted in the United Kingdom
an entertaining one, although in 2006.
perhaps not one that encourages George Brandis, Malcolm Turnbull and Peter Dutton at the announcement of a There is no doubt that reform
respect for the solemnity of new home affairs portfolio, 18 July 2017. of the appointment process for
the process and the system in judges, including replacing it
general: Queensland. Speaking In Praise of Unelected with direct election, is a valid
Judges in 2009, then Chief Justice Robert topic for debate. Presenting it as a choice
There’s a judge they call Paul Newby, he’s French said: between soft decisions on bail and sentencing
got criminals on the run. Paul’s steely on the one hand and popular election on the
stare’s got them running scared and Having said all that, there is a powerfully other is, however, unlikely to be helpful to
he’ll take them down one by one. Paul entrenched tradition of an appointed, such a debate and indeed is likely to do little
Newby, he’s a tough old judge respected rather than an elected judiciary in other than undermine public confidence in
everywhere. Paul Newby - justice tough Australia. It is closely related to what the judiciary and the legal system.
but fair. Paul Newby – criminals best I venture to say is wide acceptance Whilst individual comments may well
beware. of the proposition that judges should constitute a contempt of court, the system
be independent of influences from should be robust enough to engage in the
Attack advertisements are, however, more governments and political parties and debate and rebut superficial and intemperate
concerning, although perhaps reflective of the ebb and flow of public opinion, comment. As individual barristers, we form
some of Mr Dutton’s comments, with judges in deciding cases before them. This part of that system and must be prepared to
often being criticised for having sided with is not to say that there is not room for put our heads above the parapet, even at the
‘felons’ or ‘molesters’ over ‘law enforcement’ improvement in the processes of judicial risk of Mr Dutton describing us (along with
or ‘victims’. appointment in terms of consultation pro bono lawyers acting for asylum seekers)
Requests for donations extend from the and transparency. There has been as ‘un-Australian’.
upfront traffic court candidate’s request for considerable discussion of this in recent
‘twenty dollars cause you all gonna need years and steps have been taken in
me in traffic court’ because ‘I got some relation to the appointment of judges
stuff I gotta go do’; to the sinister successful to strengthen the application of the
candidate’s email to a lawyer who had merit principle and to widen the range
donated to his opponent: of persons who may be considered for
appointment by calling for expressions
I trust that you will see your way clear to of interest or nominations.
contribute to my campaign in an amount
reflective of the $2,000 contribution you Professor George Williams, dean of law at
made towards my defeat ;-) the University of New South Wales, writing
in the Sydney Morning Herald in 2016 about
The current system for judicial the secrecy of appointments to the High
appointments in Australia is the subject of Court in Australia, put the position thus:
robust discussion from time to time, such as
occurred recently following the appointment We must not politicise the appointment
of Tim Carmody as the chief justice of of judges, but nonetheless should change
The Journal of the NSW Bar Association [2018] (Autumn) Bar News 13RECENT DEVELOPMENTS
Give them the BOOT:
Negotiating enterprise agreements
with existing employees for a ‘new enterprise’
Vanja Bulut reports on ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association (2017) 350 ALR 381;
(2017) 92 ALJR 33; (2017) 270 IR 459; [2017] HCA 53
The High Court has determined that an Transport Workers’ Union of Australia and White JJ, Jessup J dissenting), upheld
enterprise agreement to cover employees at (TWU) nor the Shop, Distributive and the SDA’s contentions and issued writs of
a new enterprise can be made by a vote of Allied Employees Association (SDA) were certiorari and prohibition.2
current employees who have agreed to work, involved as bargaining representatives for the The majority of the Full Court focussed
but are not at that time actually working, as new agreement. upon the perceived difficulty posed by the re-
employees in the new enterprise. ALDI put the SA Agreement to a vote of quirement of s 186(2)(a) of the Act for the SA
The court also considered the approach to the 17 employees. 16 employees cast a valid Agreement to have been ‘genuinely agreed to
be taken by the Fair Work Commission in vote, and 15 voted in favour. by the employees covered by the agreement’
determining whether an enterprise agree- when no employees were, at that time, actu-
ment will meet the ‘better off overall test’ Fair Work Commission ally working under the SA Agreement.3
(the BOOT) for the purposes of s 186(2) application and appeal The majority of the Full Court also upheld
(d) Fair Work Act 2009 (Cth) (the Act). The the SDA’s argument that the full bench
court concluded that when a full bench of On 4 August 2015, ALDI applied to the misapplied the provisions of the Act in being
the commission is determining an appeal it commission for approval of the Agreement. satisfied that the SA Agreement passed the
is engaged in a rehearing and as such it can Deputy President Bull approved the SA BOOT for the purposes of s 186(2)(d) of the
find error based on additional evidence even Agreement without the participation of the Act, without resolving the issue raised by the
though the primary decision was correct at two unions. new evidence.4
the time it was made. The TWU and the SDA filed notices of
appeal against the decision of Bull DP to the
Facts full bench of the commission. Relevantly, it Having considered Part 2-4 of the
was contended that the SA Agreement:
This decision concerned an application made Act, the High Court found that the
by ALDI Foods Pty Limited (ALDI) for the a) should have been made as a
approval of its proposed enterprise agree- ‘greenfields agreement’ under the Act
word ‘employed’ in s 172(2)(b)(ii)
ment, ALDI Regency Park Agreement 2015 because ALDI was establishing a new of the Act ... should not be taken
(the SA Agreement). enterprise and had not employed in
ALDI operates retail stores in various that new enterprise any of the persons to mean ‘employed in that new
regions of New South Wales, Queensland who would be necessary for the normal
and Victoria. ALDI’s operation in each conduct of the enterprise; and enterprise’, as argued by the SDA, as
geographical region is treated as a separate
enterprise, each covered by a separate enter- b) the SA Agreement did not pass the the new enterprise does not yet exist.
prise agreement. BOOT.
In early 2015, ALDI was in the process of
establishing a new undertaking in Regency The full bench (Watson VP, Kovacic DP The High Court decision
Park in South Australia and sought, from and Wilson C) rejected these contentions,
its existing employees in its stores in other and dismissed the appeal.1 The High Court (Kiefel CJ, Bell, Gageler,
regions, expressions of interest to work in the Keane, Nettle, Gordon and Edelman JJ)
Regency Park undertaking. Seventeen exist- Full Court of the Federal Court decision unanimously upheld ALDI’s appeal in rela-
ing employees accepted offers to work in the tion to the coverage issue but dismissed its
new region and ALDI commenced a process The SDA then applied to the Full Court of appeal in relation to the BOOT issue. In a
of bargaining with these 17 employees for an the Federal Court for judicial review of the separate judgment, Justice Gageler provided
enterprise agreement to cover the work to be decisions of both Bull DP and the full bench an additional observation concerning the
done there. of the commission. coverage issue.
Neither of the two relevant unions, the The Full Court, by majority (Katzmann The High Court ordered that the matter be
14 [2018] (Autumn) Bar News The Journal of the NSW Bar AssociationYou can also read
